Sunday, August 26, 2007

Coleman: Durham Likely Will Settle

Yesterday’s Herald-Sun made public the two sides in the civil suits against Durham. On the one side: two of the nation’s most powerful attorneys, Williams & Connolly’s Brendan Sullivan and Barry Scheck of the Innocence Project. On the other: Durham’s city attorney, the appropriately named Henry Blinder, who certainly appears to have had blinders on as the Police Department ran roughshod over procedures last year. Durham has a $5 million insurance policy to cover liability from civil suits.

Reporter Ray Gronberg asked Jim Coleman to analyze the strength of the falsely accused students’ case: “Clearly, there was wrongdoing. The city needs to assess the extent of it, and decide whether it bears responsibility. My guess is it will conclude it does.”

The move, Coleman noted, came as no surprise: “That was the whole point of why this case was so extraordinary. These were not run-of-the-mill, poor, unconnected people. These are students who could command the very best lawyers in the country.”

Both Coleman and Duke Law professor Erwin Chemerinsky pointed to the city’s likely vulnerability under the Civil Rights Act of 1871, which allows people to sue in federal court over “the deprivation of any rights, privileges or immunities secured by the Constitution.”

Such suits are often confined to rogue police officers, but in this case the 2007 actions of key Durham officials are likely to prove very costly to the city’s long-term financial health. The city’s key area of vulnerability, Coleman noted, is the procedurally tainted April 4, 2006 lineup, in which ex-DA Nifong instructed the police to violate their own procedures and confine the lineup to suspects.

Coleman told Gronberg that the officers “had an independent obligation to handle this thing according to their own polices, and they've pretty much acknowledged they didn't do that. And, obviously, that had some pretty serious consequences. The students wouldn't have been indicted if they didn't run that flawed identification process.”

Indeed, given the decimation of Brian Meehan’s findings in the December 15 hearing, it’s now evident that the results of the flawed ID process constituted the only evidence used to indict the three specific people ultimately targeted.

In the last four months, in depositions before the State Bar and in a public report, the decision to override procedures has been justified, on the record, by:

In short, the Baker/Chalmers/Ripberger/Gottlieb quartet have made the students’ case for them, by affirming that the decision to override procedures was not the result of a rogue act but instead a calculated decision that the entire leadership of the Police Department backed, either at the time or subsequently. Perhaps Blinder should have taken off his blinders before allowing the quartet to make such statements on the record.

According to Gronberg, “Coleman added that the city could also be liable for false statements impugning the players that police made knowing they were ‘wrong or they were reckless.’”

This claim would seem to place in the crosshairs Cpl. David Addison, who dominated the local media last March with a string of demonstrably false statements about the players’ actions and the evidence in the case.

“You are looking at one victim brutally raped. If that was someone else’s daughter, child, I don’t think 46 (tests) would be a large enough number to figure out exactly who did it.” (WRAL, March 24)

“Addison said police approached the lacrosse team with the five-page search warrant on March 16, but that all of the members refused to cooperate with the investigation.” (Herald-Sun, March 25)

“We’re asking someone from the lacrosse team to step forward . . . We will be relentless in finding out who committed this crime.” (N&O, March 25)

“Addison said police can’t force samples from anyone they believe to be implicated in a crime. But he said that, in this situation, there was ‘really, really strong physical evidence.’” (Herald-Sun, March 25)

“We’re not saying that all 46 were involved. But we do know that some of the players inside that house on that evening knew what transpired and we need them to come forward.” (ABC, March 26)

“Although we have received many calls expressing concerns and anger about this incident, we have not received any calls which will allow us to assist in resolving this case. We are extending our plea for information and help to our Duke family, who are also part of our community.” (WRAL, March 28)

Addison and the DPD have repeatedly refused public comment on why the corporal chose to go public with false or misleading statements.

173 comments:

TaterCon
said...

Has the Herald-Sun scooped everybody and found civil suits are pending??? Or, does the Herald-Sun not know the difference between a pending civil claim in presuit negotiations and an actual suit that has been filed??

It is unfortunate that so many residents of Durham must suffer for the egregious acts of those few who are most clearly culpable. But, that is the nature of justice. And if the victims of the lacrosse HOAX wish to pursue their right to justice, then the City of Durham and its collective populace should surely suffer.

But that scenario invites another alternative. What if all those who abetted the HOAX and all those who looked the other way were required to do penance, to atone for their illegal acts? Would that represent justice?

...no... as I sit here thinking about justice ... Durham and its citizens deserve to have a bankrupt governmental authority and the obligation of starting anew ... for the citizens of Durham empowered the enablers of the HOAX. The citizens of Durham created the culture that enabled Mike Nifong and the racist hate that elected him. The citizens of Durham are culpable in the HOAX.

One of the worst things about this (in my opinion) is the fact that jerks like Addison (and the entire department) have refused to accept any blame, admit any error, or apologize in any way. The Baker/Chalmers report was a whitewash of monumental proportions and not a single member of the DPD (or the city Manager) has admitted they did anything wrong or apologized.

If I were one of the players I'd be pretty pissed off about that.

To this day I am unaware of anyone at DPD saying there were any mistakes made or that they were sorry for the ordeal they put the players through. In fact, to my knowledge everyone has defended their actions and said everything was done correctly.

Apparently everybody in Durham feels things were done by the book as well as Addison, Gottlieb, Chalmers, and the rest are all still at work having not been disciplined in any way and having not missed a single day of work.

If I were the players I'd be pretty pissed off about that.

It's long past time for Gottlieb, Addison, Chalmers, and a number of others at the DPD to get what they deserve. Maybe this will help the good people of Durham realize some of their public officials are dishonest scumbags.

The defendents' suits will likely be quickly settled. The suit that is likely to be protracted is the one between the City of Durham and its insurer that litigates the issue of whether the offending lineup constituted one incident or three. If it's the former, the liability cap is $5 million. If it's the latter, it's $15. The question is directly akin to the insurance cap litigation after the World Trade Center attack, over the question of whether there was one attack or two.

Jim Coleman states "These were not run-of-the-mill, poor, unconnected people. These are students who could command the very best lawyers in the country."

Without citing to any specific posts/comments, it has been discussed previously that had the accused been "run-of-the-mill, poor, unconnected people", the case would not have developed has it had and the city would likely not be facing the liability it potentially now faces.

The police would not have compromised its lineup procedures for a "run-of-the-mill, poor, unconnected" defendant; the prosecutor, after the physical evidence, or, rather, the lack thereof, failed to produce evidence of a sexual assault, would not have sought indictments; AND Addison, Nifong and company would not have engaged in outrageous pre trial publicity for a "run-of-the-mill, poor, unconnected" defendant. After all, the media would not have been interested in a "run-of-the-mill, poor, unconnected" defendant.

Durham made its bed, now, unfortunately for its tax payers, in it Durham must lie.

*********

There will be those who will consider it in bad taste that the wrongly accused would even consider civil suits against poor Durham and its innocent tax payers. I anticipate that Prof. Johnson will have the issue as a subject for a future post highlighting the hypocrisy of it all. Paging Selena Roberts.

In medicine, risk managers tell health care professionals thay should never say "I'm sorry" or to apologize to a patient or family if there is a bad outcome. An apology can be taken as an admission of guilt, that something went wrong. This may be the case with Durham or the G88, in an attempt to defuse a civil suit. In particular, the G88 may well have been advised to say nothing at all. Thus, an apology would not be forthcoming or advisable.

I would love to hear what DPD Spokesperson Addison and groups like the NC NAACP and UBUNTU have to say about the suits. It appears there may be a day of truthtelling in Durham after all.

How twisted must a group be to have their website claim (to this day) it "was born in the aftermath of the March 13, 2006 rape of a Durham, NC Black woman by members of the Duke University Lacrosse team."

Crystal Mangum could admit she lied and this group would maintain a rape happened. Their website might as well say the Earth is flat and the government orchestrated 9/11. I wonder what it must be like to belong to a group that was founded based on an event that didn't happen.

Anyone from Durham who might take issue with the players filing suit need look no further than their own backyards. If you're wondering why your city is a laughingstock about to be taken to the financial woodshed, please ask, your DPD Spokesmen, William Barber and the good ladies of UBUNTU.

I can not tell you how much satisfaction it gives me to know that city officials -- who refused to lift a finger to stop Reade, Dave and Collin from paying with 30 years of their lives for a rape that never happened -- are now going to pay themselves.

1. Finally we have an understanding of Addison contributing to Durham's liability. Not his own liability but Durham's. For that we need not know if he had examined the evidence and knew what he was saying was not supported by the evidence. We need only to know that DPD knew what was being fed to Addison was not supported by the evidence. Addison still was a flack and flacks repeat the company line.

2. There is great irony that the Defense of the DPD now will costs Durham a great deal of money.

I have an active life outside of this story but I read everything I can about it, even now. One of the reasons I got so involve on an emotional level is that, on the basis of personal experience, I was introduced to the harsh realities inherent in being falsely accused of something even vaguely to do with sexual impropriety. The thing is, enduring that effectively rewires your nervous system; it cuts extraordinarily deep into your psyche, you never get over it , you are thereafter a little crazy with attitude, and the appetite for (not revenge that sounds too crude) unending bloody pay-back has no practical limit. Those who attack the beloved children of the hard working elite in this country with bogus charges of crimes-that-are-not-OK should not be surprised when they hear the baying of the BIG DOGS that have been unleashed; hungry, smart, persistent, hungry, ruthless, and not put off by the screamimg of those whose time has come to pay a karmic debt.

I've said it before........how gratifying this is. Emotionally-speaking: When you think of innocent people (some would call them kids) under the assault of that demented crowd of adults with threats of mutilation and death, and see how justice has come around.....sometimes one can be reassured fairness/karma/God/nature...however you define it..works after all.

haskell said... In medicine, risk managers tell health care professionals thay should never say "I'm sorry" or to apologize to a patient or family if there is a bad outcome. An apology can be taken as an admission of guilt, that something went wrong.

Speaking as an attorney, those "risk managers" should be fired immediately. At least 90% of all negligence lawsuits that are filed would not be filed if someone had said "they were sorry". Time after Time after Time, I've heard my clients and other attorneys' clients say, "If they just would have acted like they cared!"

Here's my advice, if you don't want to pay me and my clients: If you make a mistake, (1) tell them you're sorry and show them that you are doing everything you can to remedy the mistake. (2) Answer all their questions honestly; always take their phonecalls.

You see, injured people don't sue you ... pissed-off injured people sue you. People will forgive carelessness, but not insults to their intelligence or dignity.

Postscript: Technically, your "risk managers" are correct: An "I'm sorry" can be taken as an admission of responsibility and could be used against you in court. But, aside from the fact that the same "I'm sorry" may prevent you from being sued in the first place, a good lawyer can prevent this "admission" from being used in court against you.

Postscript Postscript: Even if the worst should happen and you are sued and found liable, if the facts show that you were (1) remorseful and (2) honest in attempting to ameliorate or eliminate the damage, then you will never be hit by a (pissed-off)jury with punitive damages which are the ones that create the giant damages awards.

The "risk managers" who told Durham to act like it did nothing wrong in the Lacrosse Scandal are the most expensive consultants ever hired in that town.

I have a good friend who is a Medical Doctor and he says that the best way to avoid a lawsuit, if a mistake is made, is to 1. Tell the family as soon as you can exactly what happened, 2. Get really focused on mitigating any actual harm that might follow the mistake. If a sponge was left in somewhere take it out today. In general, just be ready to spend unlimited effort to undo the bad effects of any obvious mistakes. My friend says he has been practicing about 30 years and has never been sued. But he has always rapidly fixed what could be fixed. This concept has no applicabilty to Durham. Durham is like a feral hog. Fat, juicy, truculent, un-natural, and living in an open season zone. Bang Bang, Shoot Shoot...

hman, sounds like your friend is a smart doctor. One of my brothers-in-law is a pediatrician. About 15 years ago, I gave him the same advice, which he says he's followed. He's been practicing about 20 years and has never been sued.

So good to read your words -- it's so very true. I have experienced both sexual abuse in my childhood, and paranoia that as a male and especially as a male sexually abused by a relative I would turn around and become an abuser myself. Neither of these things were good for me but if you gave me the opportunity to erase the effects of one I'd erase the paranoia every time. It nearly killed me, in a very literal sense.

People who think it's much better to treat every single accusation of sexual misdeeds as absolutely true no matter how iffy the evidence either don't understand the real damage that false accusations do -- or they do and they actually still think inflicting that damage is an acceptable cost, in which case they're monsters.

About fifteen percent of victims, predominantly male, do become abusers. In fact a significant proportion of the men who commit aggressive rapes of women are victims themselves. You haven't stated the gender of your relative but this can change the impact of the abuse somewhat. Victims who do subsequently abuse will abuse the same gender as their own abuser.

I wonder if you've spoken up about your experience at any time though I would understand if you hadn't. It's a particularly brave, almost heroic, act for male victims, particularly victims of women, to speak out in our culture. If you have I'd be interested in the response.

For the record I have a similar experience in my past at the hands of a female relative. Often the very people you'd expect to be supportive, such as those who are outspoken about sexual assault generally, will not just ignore you but actually go on the attack.

It is quite possible that the majority of child sexual offenders are women and that the majority of victims are boys. Unfortunately rape/sexual assault has been thoroughly politicised by feminists and they have come to dominate any discussion about it. Any acknowledgement that there are male victims and female abusers undermines many of their fundamental premises so they tend to be remarkably disdainful of male victims particularly where abused by women. My experience of feminists in this regard is that, in true G88 style, if they don't call you a liar outright they will still try to find a way of blaming the entire male gender. If they can't blame the victim they will still blame the victim's gender.

Do not for one moment think you are the only one. Acceptance of the existance of male victims is in short supply however. There have been many comments over the course of this blog and elsewhere about scepticism toward women who have been raped. Those complaining should walk a mile in the shoes of the male victim.

* You are looking at three victims illogically charged. If that was someone else’s sons, children, I don’t think truth would be a large admission to figure out exactly who did it. (posters at KC's blog)

* Reasonable observers said police approached the lacrosse case with the wish to railroad the team, but that all of the members of the department refused to cooperate with the flawed investigation. (The blogosphere)

* We’re asking someone from the police department to step forward . . . We will be relentless in finding out who committed this crime. (Lane Williamson & the Bar)

* Police can’t force truth to be twisted from anyone they believe to be falsely accusing others of a crime. But in this situation, there was no ‘really, really strong physical evidence.’ As a matter of fact, there was much evidence to the contrary. (Horrid-Scum)

* We’re not saying that all members of the police department were involved. But we do know that some of the players inside that department in that year and a half knew what transpired and we need them to come forward. (Gov. Easley)

* Although we have received many calls expressing concerns and anger about this incident, we have not received any calls which will allow us to assist in resolving this case. We are extending our plea for information and help to our DPD family, who are also part of our community. (Duke Administration --yeah, right)

I agree with rrhamilton and would like to add that not only has there been the lack of an apology, but Gottlieb STILL insists there was a rape, and the city openly is claiming no wrongdoing. Despite the fact that the "lineup" has been taken apart legally, the powers that be in Durham still tell us it was not a lineup, but an attempt to "find" suspects.

We have to understand that the police would not have gone through all the preparations that it did in videotaping the lineup and making sure that it would look good for a trial had it just been a "looking for suspects" exercise. They knew beforehand she was going to pick people.

Don't forget that Durham not only subjected the three young men and their families to pure hell; it also subjected 43 other players and families to the same thing. After all, most of the "bad acts" of the police occurred BEFORE the indictments.

Also, remember that Baker and Chalmers are on the record with their official lies and the Baker-Chalmers Report was an official city document. While Mayor Bill Bell, to his credit, did not accept this report with open arms, nonetheless it still is an official document.

My sense is that the powers that be in Durham knew all along this was trouble, but they were counting on a Durham jury either to convict or to be hung, and they figured that would let them off the hook. They never counted on the NC Bar taking action, and they surely did not think that a Democratic attorney general would be brought into the case and then exonerate the three young men and end a prosecution that was popular in that one-party city.

The voters of Durham by supporting Nifong actively endorsed what was happening. The Hurled-Scum endorsed it, much of the Duke faculty endorsed it, the NC NAACP endorsed it, and the rest of the Durham political constituencies endorsed it. There really is no defense here.

Thanks very much for your clarification. Your points are very well taken, and I certainly agree that decent people will and should act appropriately as you describe. The best course, in case of a bad outcome, is to sit down with a patient and their family and let them know exactly what happened and what is being done to fix it. I do not mean to be cynical, or smart-alecky, but several years ago I read a book about how to beat a speeding ticket. The highway patrolman, at 3 am, faces a dangerous situation after pulling someone over. He defuses this by by saying, in a sympathetic way, "We seem to have a problem, my radar showed you were going 96 in a 35 mph zone." He allies himself with the speeder "we" and distances himself by referring to the radar. He then negotiates, maybe, by giving the guy a break, say a 55 mph ticket. That being mentioned, I agree wholeheartedly that a sincere attitude of contrition and a genuine attempt to do the correct thing is always appropriate.

If the city does not settle, where would the trial be? Wouldn't it be a conflict of interest for a Durham citizen to be a juror at a trial that could raise his/her property tax? If there is a trial, should it be moved to Asheville or someplace else far away? And if the city settles, will the public ever know what really happened or the guilty individuals ever held accountable?

The bad actors within the Durham City Government and Durham Police Department must be punished for their illegal actions.

What is amazing is that many, including many members of the Duke University administration and faculty, sat silently throughout this abuse of civil liberties directed at members of the Duke community.

Brodhead, as the leader of Duke University, had a moral obligation to speak in defense of the civil liberties of members of his community. That he did not do so disqualifies him from continuing to lead Duke. Brodhead should resign immediately.

I believe Mr. Scheck was asked by Dave Evans to take the civil suit forward. Mr Scheck is not doing it as a representative of the firm he works with but as an independent civil lawyer, and possibly a friend of the family.

I believe that what you indicate about Mr Scheck is not a joke but a choice by the Evans family.

With all deference to Prof. Coleman, one of the true heroes of this case, I believe that his comment about the extraordinary circumstance of the Duke students being able to access quality legal representation should be looked at in the opposite direction.

It is often quality legal cases that attract quality lawyers. I imagine that the lawyers in the Duke lacrosse case could recognize the potential for a large settlement award even with their eyes closed. In the same manner, Willie Gary (much discussed as a civil litigation champion for CGM in the early days of the case) slipped silently away once he realized that the assault claim was almost certainly bogus.

The lawyers representing the Duke lacrosse players could recognize civil rights violations, but for some reason, Brodhead, could not.

Brodhead is a disgrace to the responsibility that all should share to speak out in defense of civil rights. That fact that he did not do so should be grounds for removal from his lofty office.

But Durham does have some assets (the liability policy alone won't cover this exposure unless, as someone noted above, it's a $5M cap, per incident, and the three Hoax victims are construed to have been harmed in separate incidents). Whatever Durham's assest base might be at the present, however, Durham can pretty much kiss it goodbye.

Durham taxpayers think their tax load is high already? They won't believe the tax increase that awaits them for their implicit culpability for the Hoax. Couldn't happen to better and more deserving wackos. I, too, *raise my glass."

With the legion of clowns -- Nifong, Baker, Chalmers, Gottlieb, Addison, and dozens of others -- Durham has exhibited in this case, how on earth could they believe a paltry $5 million was adequate to cover the city for a civil rights violation liability that, again, with these clowns, was just a matter of time.

Maybe Addison should consider auctioning his recent award to raise additional capital for their defense effort. Unquestionably, almost anyone who bought it would be a more worthy recipient than Addison.

I'm getting a visual of the cast of clowns appearing at the office of Henry Blinder and telling him to "get out there and do what you're paid to do; get out there and defend us." Blinder, recognizing that he is hopelessly outclassed by Sullivan and Scheck (after all, how much legal talent can you buy from someone who works for a city-sized salary), realizes he is about to step up to the plate against Nolan Ryan in his prime, who will be aiming at his head, and wishes he had followed his dear mother's advice and become a college professor (they haven't suffered as the result of anyone's misdeeds, including their own).

It doesn't take someone with the deductive reasoning ability of a Jim Coleman (who recognized early on that Nifong was mooning the system) to state that Durham's most viable option is to recognize its responsibility in the wrongdoing and punt (i.e., settle out of court). And the plaintiffs should insist on the policy limit. If they want to go higher, perhaps Durham can appeal to Dick Brodhead to spread a bit more of the Duke endowment around to continue to cover the tracks of the guilty from being exposed in a public trial. Dick's already paid hush money, what, 3 times (Pressler, Dowd, and the Lax 3)? Or is it 4?

Durham being Durham, however, we might as well hold out the possibility that they will take a page from the Nifong playbook and forge ahead. After all, maybe Nifong can convince Blinder that other attorneys would be as fearful to face him (Blinder) in a courtroom as they were Nifong.

I think some people here are way too cynical. If anything, this case has reestablished my faith in the system. Yes Nifong and his cronies are evil but they are paying now bigtime. At least you have people in Durham who stepped up to the plate and set everything right--which was anything but the case in the Ramsey murder case and many others that I've watched go astray. While it's certainly true that this "case" should never have happened in the first place, I prefer to focus on how the whole thing is getting firmly and justifiably set straight.

I am waiting patiently, however, for Mikey's wide behind to be placed squarely on a prison cot...

It causes me great anguish to say it, but the real bottom line is, Durham doesn't need a (valid) defense -- all it needs is a couple of jurors who are stupid, who just don't "get it," or who resent the so-called "elite" white boys.

Or who dislike Duke, or who still say "something happened," or who worry about their tax bills. Or who (like some of the regular posters here) just plain hate all lawsuits and the people who bring them.

There is no such case as a "sure thing" -- don't kid yourselves. This is still the City that elected Nifong in the first place, when anybody with half a brain knew by election day that he was scum. Look at the local letters to the editor, if you want a bad fright.

In this case, the LAXers have excellent attorneys, raising the specter that, if the boys do hit in a jury verdict, they will hit VERY BIG.

Both sides have a lot to gain -- or to lose.

Bottom line: A settlement -- one that acknowledges the egregiousness of Durham's misconduct, and the seriousness of the damage done -- would be the best outcome for everybody concerned.

Forget about the thrill of seeing liar Gottlieb get humiliated under cross examination -- if everybody is smart, that will never happen. Guys, when they pay you the money, that means you've won.

Duke University will host a reception for students and neighbors who live near East Campus at the Newman Catholic Student Center at 402 N. Buchanan St. from 4 to 6 p.m. Wednesday.

Representatives of the Durham Police Department and state Alcohol Law Enforcement will attend, along with city building inspectors and university administrators. Students and neighborhood residents are encouraged to meet in a casual atmosphere.

For a second year, Duke and Durham police are going through the Trinity Park, Trinity Heights and Ninth Street areas and meeting with groups of students to talk about safety, noise and alcohol rules and being good neighbors.

As another town/gown initiative, the Duke Symphony Orchestra will perform at 6:30 p.m. on Sept. 2 on the East Campus Quad in front of Baldwin Auditorium. Students and neighbors are invited to bring a basket and blanket and enjoy the music.

It's my understanding that the Innocence Project has been established to become involved in cases that have already been adjudicated to determine if the guilty verdict was not correct based on evidence that was either not available or not properly considered during the trial.

Since the Lax 3 were properly afforded their opportunity to avoid the absurd suggestion of Richard Brodhead they have get a chance to prove their innocence in court, this case appears to be outside the scope of the Innocence Project.

Scheck's specialty is DNA evidence. He is being retained as a private attorney, presumably for the relevance that DNA has in this case.

Well, the city's insururer will pay out some cash. The city will have to pay significantly higher premiums and be subject to large deductibles in the future. The thee ex-Duke students will be financially compensated. That's all good and well, but what will this really change? Will the voters of Durham clean house? Doubtful. Will other communities learn from this? Doubtful. Will Dukes administration and faculty learn from this? Doubtful. What they will learn is how to better hide their illegal, immoral, and unethical activities, or perhaps make better selection of their victims to ensure that they can't fight back. Boys, if you are still following this blog please make sure you take care of yourselves and your families. I know that you have made emotional and well considered statements about the inability of most people to fight abuse in the legal system, but do not allow their promises of change to mitigate the amount of money you get. These evildoers will not change their ways. Take their money and use it to effect change elsewhere if this is your passion.

All my sympathies are with with Reade, Dave, and Collin, and of course, they can and should retain the best lawyers. Julian's remark, however, about the Innocence Project (and even now the emphasis that Scheck is working strictly as a private attorney)should remind us of the PC world of academics and activists operating out there, where even groups like the Innocence Project who say they want to help the wrongly convicted and accused, did not support the lacrosse players.

If you will indulge yet one more letter about the Duke lacrosse case, I'd like someone to answer a question. I've sent this question to Duke President Richard Brodhead's office as well as the public relations office but have received no reply. Like most schools, I'm sure Duke has an orientation for freshman that includes explaining a campus-wide intolerance of racism, sexism and the many other categories that our culture has now defined as important.

I read with interest how students, when the incident was first reported, rushed to put up protest posters, make derogatory comments to the players and in effect judge them before they were proven guilty. Why shouldn't the freshman orientation also include a discussion of our American tradition: innocent before proven guilty?

Surely the behavior of staff, faculty and students in condemning the players was just as offensive as these other categories. I would like to know if Duke indeed sees this as a juvenile embarrassment now that the players were found innocent, and what plans Duke has to re-educate the entire school?

Of course they can claim that Second Amendment gives people the right to protest, and indeed it does. However, this blatant behavior is no less harmful than many other pejorative categories that now qualify as inhumane.

The City of Durham and those employees who have blessed it with massive liability through prolonged misconduct are unrepentant. To date, they have completely ignored the sort of advice that R.R. Hamilton offered at 2:02am (apologize and make amends).

Will the City and its leaders really stand for an objective evaluation of their misdeeds as the lawsuits' storm clouds gather?

Think back a moment on Chambers' career and what he's supposed to stand for...what kind of man he's supposed to be.....the reasons his unattractive mug has been displayed in so many places for decades.

--This is a man who supposedly finished first in his UNC-CH law school class way back when...and had a successful law practice.

--Worked as an attorney for the NAACP and engaged in other civil rights endeavors. Helped integrate the Charlotte-Mecklenburg school system.

Former chancellor of NCCU, etc......

....yet he seems to have learned nothing about true civil rights.

The life of Julius Chambers could serve as a grand example of what the phrase civil rights means to most black people in this country.

...haskell said... ...In medicine, risk managers tell health care professionals thay should never say "I'm sorry" or to apologize to a patient or family if there is a bad outcome. An apology can be taken as an admission of guilt, that something went wrong.

...Speaking as an attorney, those "risk managers" should be fired immediately. At least 90% of all negligence lawsuits that are filed would not be filed if someone had said "they were sorry". Time after Time after Time, I've heard my clients and other attorneys' clients say, "If they just would have acted like they cared!"...Here's my advice, if you don't want to pay me and my clients: If you make a mistake, (1) tell them you're sorry and show them that you are doing everything you can to remedy the mistake. (2) Answer all their questions honestly; always take their phonecalls. ...You see, injured people don't sue you ... pissed-off injured people sue you. People will forgive carelessness, but not insults to their intelligence or dignity.::Excellent!

Over the last fifteen years I have watched in complete amazement as H/R has carved out a 'risk management' profession without the benefit of a legal education.

Attorneys are helping professionals and they represent the entity while H/R risk managers represent themselves.

Today we have an entire generation of young managers who have never attended a corporate workshop where corporate council gives specific advice and examples on why you should not ...piss off the customers and others.

rrhamilton comments should be copied and circulated tomorrow at work by executive level managers.::GP

Re the comments of Bob C at 9:38, With all due respect I don't recall a single person in Durham "stepping up" to the plate or setting anything right.

I recall the State bar and other officials in Raleigh and other parts of North Carolina stepping in, but the good people of Durham seemed more than happy for the hoax to run its course. I don't remember anyone from Durham doing anything in the interest of fairness until after the AG said what the rest of the world already knew.

Please let us know who these "good people" were and what they did to "step up" and "set things right."

Because if my memory serves me, the newspapers, police, public officials, and even the representatives from Duke, were all very content to have a trial take place despite the lies and lack of evidence.

Personally I'd like to congratulate the bigots in Durham who pronounced the players guilty based on their skin color. A big shout out to those (Nifong, DPD, etc) who capitalized on the race issue as well.

Way to go, your actions have paved the way to even more comfortable affluent lives for the men you prejudged. And they deserve every penny they can squeeze out of Wonderland.

That's clearly what happened with the Duke settlements and I would assume that this will happen with Durham too. Durham doesn't want this dragged out in the media and the families probably want to get on with their lives. Fortunately we have several books out that have chronicled the case. It would be nice to have an addendum book.

As a couple of posters have said, Professor Coleman misses the point. The Duke 3 were not prosecuted because they were "poor and unconnected," but because they were perceived as "white and rich." It was a real-life version of Tom Wolfe's "Bonfire of the Vanities."

...The Innocence Project wasn't running to help the Duke 3. Comments from one of their directors was very negative toward them....Now Scheck is moving in to collect a big payday. what a joke. ::I disagree and I did read those interviews and press released from the Innocent Project.

The issue was limited resources for the Innocent Project (organization) and I suspect that is what Reade is working on with this case.

The demand for assistance from the Innocent Project appears to be enormous yet the availability of resources to meet the demand are quite limited.

This case should ultimately 'beef up' those resources for the Innocent Project organization and more importantly, the Innocent Project will become a consideration when prosecutors are preparing their case against citizens.::GP

9:39"Forget about the thrill of seeing liar Gottlieb get humiliated under cross examination..."Well, maybe not in the civil suit against Durrhhh.

First, the torts.(Next, the torches and staves.)All joking aside, I expect to see Gottlieb eventually under arrest, along with Addison and many others. Once charged, you will surely see Gottlieb squirm; if he's convicted, you will then see him humiliated - (and frankly, I don't see prison rape as something that anyone should find amusing, so that's not what I'm talking about.) I would prefer to see Gottlieb and company humiliated in more subtle ways, ending with sincere repentance.

Early on, Wendy McElroy (the "Good Wendy") mentioned that they (the accusers et al) picked the "wrong group of parents to piss off."

If I understand the process, here's how a trial would go down:Durham and its co-defendants would be represented by an attorney (or attorneys) hired by the insurer, probably not the city attorney, Blinder. The trial, being a federal issue, would be held in a federal court--the nearest being in Greensboro. What that means is that the jury pool would not be limited to Durham and its denizens. In fact, during voir dire jury selection, the plaintiffs' attorneys may very well dump any Durhamites since they would have a vested interest in the outcome (their taxes would go up). Any lawyers out there care to grade me?

When the initial DNA tests came out, one of the leaders of the Innocence Project stated the following: "There's an old saying that the absence of evidence is not necessarily evidence of absence." Sound to me that he believed a rape occurred, and not like a question of limited resources.

In re: potential for a Durham jury with tainted verdict, the H-S article references a federal civil-rights lawsuit. I don't think any federal trial would take place in Durham. Federal judges in the NC Eastern District, which I believe covers Durham, sit in Raleigh, New Bern, Greenville and Wilmington.

If any Durham residents became part of the jury pool I expect plaintiff's attorney would disqualify them.

I hope it's not just about money. (I do hope they each win a large award in the range of $5 Million, or more.)

I hope they are after the truth and change.

Truth, as in who is responsible for this cluster-fk and what role they played, in detail. The only way to effect real change in Durham is for the grimy details to come out in public. (This will also have the effect of further denying hope to the 'Something Happened' dead-enders.)

Change, as in, identifying the guilty so they either leave or have minimal future influence, and fixing the faulty ID and Grand Jury processes.

While painful for the perpetrators - and perhaps taxpayers - this would be the greatest help to Durham residents over the long haul.

It was widely used by Nifong's supporters to bolster their claim that the DNA results did not exonerate the accused players. Neufeld made absolutely no attempt to qualify his remark in the context of this particular rape allegation.

An alleged thirty minute gang rape with no condom use where the accuser was immediately taken to a hospital where rape kit evidence was collected would leave DNA evidence but Neufeld never addressed the specific allegations in the Duke case.

The opening lines of today’s post by Professor Johnson mischaracterize the so called opponents in any civil proceeding. As I am unable to access the article directly, I can not determine who, specifically, the plaintiffs are. Does the article name the formerly accused players? Brendan Sullivan and Barry Scheck are only their legal representatives.

And, if in fact, Mr. Scheck is not acting on behalf of the Innocent Project, as would seem likely now that the players have been exonerated, then that is most certainly an even more blatant and transparent attempt at personal gain on his behalf. “I couldn’t get my organization to lift a finger on behalf of your son, but I will work tirelessly on his behalf...on a contingency basis!”

You're also right about the insurance carrier attorneys taking the lead, but Durham's own attorney will also have a role.

Durham's liability policies have a certain level of 'self-insured retention'. (A SIR's purpose is to reduce premium and/or enforce quality risk management by insureds.) According to information I've found, Durham's current Excess Liability policy SIR is $1,000,000. During the policy year in effect when the hoax was initiated, it was $500,000. (The difference is due to an increase by the renewing Excess carrier - it was either that or pay a higher premium at renewal.)

So, without opining on the 'taxing effect' of exceeding the $5 Million limit or whether it's one 'occurrence' or three, Durham has some immediate budget skin in the game.

(I am an insurance man - not in Durham- so have some knowledge of the potential impact here.)

As pointed out elsewhere, the more interesting case may be between the city and its insurers. The insurers likely will claim this is one incident, write a check for $5 mil, and tell the city to otherwise defend itself. The city will claim it is three incidents. Then the city and insurer will have to fight it out. My guess is the city folds, because if they want to avoid discovery, they have to do so in all venues.--Buddy

Here are some of the IP quotes:"Peter J. Neufeld of the nonprofit Innocence Project, an expert on DNA testing, said that in general, an absence of DNA evidence did not necessarily mean there was not a crime."There have been thousands and thousands of men who have been convicted in the United States of the crime of rape without DNA and without semen," Neufeld said." (New York Times)

“Peter Neufeld of the Innocence Project says, "There's an old saying that the absence of evidence is not necessarily evidence of absence." (Washington Post)

"The truth is if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence," said Peter Neufeld, co-founder and co-director of the Innocence Project, which uses DNA to free people wrongly imprisoned."In rape cases, there is an expectation of DNA. But like many expectations, often it is misplaced." (to ABC News)

There are some interesting questions about the insurance coverage in Durham. If these are held to be intentional torts, then I would doubt the policy will cover them (and by extension, the City may not even be vicariously liable). The only rememdy for intentional torts may be against the individuals

The 2007 actions are interesting re insurance. If they fall in a different "claims year", then conceivably we are talking about a pool of 10 million for covered claims. That might not even be enough to shield the City.

I think the families have to go after everyone in Court on this. Why wouldn't they go after the city? The city went after them.

Sunshine, accountability, rinse and repeat.

The proper lesson of the Dook LAX case is not that every time someone who is guilty gets charged, that person can walk to a microphone and recite "remember the Lax case..." (paging Mike Vick's knee-jerk supporters, meanwhile the FEDS are pulling dog corpse's out of the ground on the otherside of the split screen).

The proper lesson is that certain subsets of traditionally-strong Democratic Party bases (campuses, the race industry and self-appointed leaders of the black community) may simply lack the emotional maturity to be responsible participants in the American justice system. If you look at a race-charged cases in the last 15 years (and with this one, now three spring to mind), have many have clearly reached the right result under the evidence? O.J.? Perhaps only this one and only through the intervention of extrajudicial body (an apolitical State Bar).

A lawyer should check, but I don't think Durham is in the Eastern District. The one time I, a Durham resident, got called for a Federal jury (I was let off since I was going to be out of the country), it was for Greensboro.

Durham (except for one small section that does not include Duke) is part of the Middle District of North Carolina, not the Eastern District.

MDNC judges sit in Greensboro and Winston-Salem, with Magistrate Judge Dixon sitting in Durham. Any trial (if it got that far, which it won't) would almost certainly take place in Greensboro or Winston-Salem.

Here's a guy who sent a letter to the Q section of the N&O. This can also serve as a balm of reality for everyone here who was upset about the Alberto Gonzales remark this week.

You see, everyday people know the hypocrisy involved with most all media sources. Too bad they won't revisit the previous administration's tawdry excesses....which many are still trying to sweep under the rug of historical embarrassments.

Along with Monica--the human vacuum, and the escaped-then-pardoned-by-Clinton, Marc Rich, I would advise all detractors to step back into the 1990's if they want to discuss a criminal administration.

LIS!

Death knell is old news

Public service journalism has long since been buried. It died after the news outlets decided that rather than report what actually happened, we will slant our reporting to bash those with whom we disagree, and laud those that we champion.

While he did not start this movement, Dan Rather is its poster child. It is no wonder the general public does not believe what they read or hear in the news. The public has to look at the hidden agenda. Case in point: President Clinton fired 90-plus U.S. attorneys at one time in his administration. This is fine, as the attorneys serve at the whim of the president. This was a footnote in the news at the time. President Bush fires eight U.S. attorneys, and the news media make a huge issue out of it. It is these types of biases that have eroded the credibility of reporting. Is it any wonder that the public does not believe the news media?

Throughout this fiasco Durham has acted as though it's completely insulated from the rest of the world, a separate little fiefdom. Of course, so has Duke. If it seems ok to them, if they think it's necessary, makes up for something, got them all emotional, or whatever the hell leaps into their heads...they say it, they claim it, they do it - and proud of it. From the pulpits, in the classrooms, in the media, on the street... man, normal standards don't apply around Durham; they just go with it. That 'North Korealina' coinage was so appropriate. Congrats again, author. Well Durham, you are gonna find out that that's one expensive fantasy.

hman - Those who attack the beloved children of the hard working elite in this country with bogus charges of crimes-that-are-not-OK should not be surprised when they hear the baying of the BIG DOGS that have been unleashed; hungry, smart, persistent, hungry, ruthless, and not put off by the screamimg of those whose time has come to pay a karmic debt.

Well said. And I note that all those with culpability are the ones crying the loudest about the need to heal, forgive as Jesus would, move on....All the blame is Nifongs, not us!!(So they can behave in the future just as they did to the Lacrosse players with future accused of the wrong race, class, gender.)

Looks like it ain't gonna happen. People culpable are instead getting their asses sued off and held to account. And if the 46 + Pressler have the money the want and the rest is "extra" it can be plowed into lawsuits where the gain of money is not the object, but to ensnare other parties in huge legal bills and years of hassle.

Like Sam Hummel?Like Dr. Meehan?Like Wendy Murphy and her media employers?Like the Herald Sun? (Unfortunately, the NYTimes has too much money and lawyers to easily sue)Like Manju Ramejdran?Like you can run, but you can't hide Tara Levicy from any statements you make outside Duke's settlement?And I would be waiting to pounce on Wahneema and any of her other PC Cohorts are stupid enough to launch new slanders in public, including to Duke classroom students, about the Lacrosse players.

Unmentioned in the Coleman piece are other major areas of liability for Durham:

1. Himan and Gottlieb preparing a fraudulent NTO that made false assertions and negated 4th and 5th Amendment rights not just of 3, but 46 people.

2. Durham employees Himan and Gottlieb concealed exculpatory DNA evidence in a conspiracy of law enforcement under color of law and in violation of Federal Statutes of the Law Enforcement Officer Accountability Act, and misrepresented the evidence to a grand jury that resulted in additional Federal Civil Rights violations. (Durham liability, with Nifong's State liability, and Meehan's private liability)

I agree with KC that Coleman was referring to Addison (and Kammie Michaels) - and you could throw Patrick Baker in, too - of Durham city employees that made defamatory statements (on top of Nifong's which are State liability)that were made to national media which resulted in such defamation becoming nation-wide in impact. Resulting in maximum damage to innocent people's reputation and exposure of those innocents to death threats nation-wide and other actions that reasonable people could conclude constitute grave damages.

I can't believe the 3 families will be content with splitting 5 million.....especially in a federal civil rights action. I imagine they could demand 10 times that each and that Durham would still rahter settle than have a federal trial (probably in Greensboro?) and risk many people going to jail. Or, can insurance company refuse to pay out more since there is evidence of actual wrong-doing, not accidental damage?PS -- for all the naysayers that LAX3 woudln't file civil actions: this has been going on behind the scenes for a LONG TIME. Let's give it a rest and watch these PROS play it out!

...When the initial DNA tests came out, one of the leaders of the Innocence Project stated the following: "There's an old saying that the absence of evidence is not necessarily evidence of absence." Sound to me that he believed a rape occurred, and not like a question of limited resources. ::Google the sentence ... Absence of evidence is not evidence of absence ...and then ...join the debate.::GP

The Duke Group88, the DukeGroup President, Duke, Durham PD . . . the idea of breaking ranks within a team is identified as being weak or so some would say . . . but I can't remember who . . . . said that, and I don't think I want to drive through Durham . . . not any more not to visit Duke.

Whoever was the idiot that utilizes the "Bill Clinton fired all the US attorneys" comment, is a complete dolt and rube. ALL new Presidents clean house of the US Attorneys and appoint new individuals. Bush's conduct was very different. Please, refrain from helping people drink the kook-Aid of Bush. The Group of 88 are morons, liars and ethically challenged, that is clear, but they don't have capability to wage an illegal war.

Just revisit the reason Alberto Gonzales' posterior is in hot water now.

I'm not really a cheerleader for any administration. Just pointing out what everyone knows.

And since Hillary-stand-by-your-man-like-Tammy-Wynette.....now wants to be taken seriously as a presidential candidate, all those facts about her and her family when they occupied the White House will be issues.

Let's not forget Hillary, the kleptomaniac. Stealing was a crime the last time I checked.

It was reported that she took everything valuable with her that she wanted as her own--(even though the very expensive items were donated by people to serve as gifts to the WH for future presidents' use as well)--as the Clintons loaded up their truck and moved to Beverly....err...NYC. LIS!

The Clintons are ultra tacky criminals. For those of us who have memories.

I agree this could be an interesting case -- Lax vs. Durham. I would like to see it go to trial, just for the discovery, but it probably won't.

I think that the most important recent new developments in the case though have occured right here: At least two Duke faculty members have come forward with tales of threats and intimidation by 88ists. I would like to see a new "We Are Listening" ad in The Duke Chronicle, from the blogosphere, saying we are listening to these victims of 88ist intimidation. There should be "quotes" in the ad lifted from the faculty members who have commented here.

Anonymous said... Whoever was the idiot that utilizes the "Bill Clinton fired all the US attorneys" comment, is a complete dolt and rube. ALL new Presidents clean house of the US Attorneys and appoint new individuals. Bush's conduct was very different. Please, refrain from helping people drink the kook-Aid of Bush. The Group of 88 are morons, liars and ethically challenged, that is clear, but they don't have capability to wage an illegal war.

8/26/07 3:18 PM

No, he had a good point. Yes, "ALL new Presidents clean house of the US Attorneys and appoint new individuals." Clinton's conduct was very different. Traditionally, when a new administration takes office, all U.S. Attorneys submit their letters of resignation. They are then gradually replaced as the new administration appoints its own people (usually well-connected attorneys, or favored-attorneys of big campaign contributors or important Congressmen/Senators). Generally, if the old U.S. Attorneys are involved in big cases, they aren't replaced until the end of that case. What Clinton did different --- and this was unprecedented -- was he came in and fired all U.S. Attorneys effective immediately. At the time, it was speculated in the press that the reason for doing so was to be rid of one or two specific U.S. Attorneys who were then investigating the Whitewater Scandal. (In the end, Clinton could not escape questions about Whitewater, and it nearly brought down his presidency.)

When Bush, a Republican president, fired eight Republican appointees and this caused Democrats to be upset, we knew something was fishy. Press reports say some of the attorneys were fired for not pursuing voter fraud cases. That would make sense.

Finally, someone famous for his brilliance said that "War is politics by other means." He wouldn't be so famous if he had said, "War is law by other means". That is to say, war is a political event, not a legal one.

Prussia's King Frederick the Great had his army's cannonballs inscribed with the words, "The Last Argument of Kings", not "The Last Argument of Lawyers".

KC, Thanks again for keeping up with events. I truly hope they find it is three separate events and each gets the maximum from the city of Durham. Then I hope they proceed to go after each individual until they land in jail in where they belong. I believe the blogger who commented on silence of the g88 being forced on them by Duke's settlement was correct. No one in Durham or Duke is sorry for their abhorent, racist behaviour towards these three young men. Anyone that the families and their lawyers can go after for monetary gain and jail time should be gone after. No one should be allowed to gain any money in the future from any books or movies telling their side of the story, including Cyrstal Magnum and Mr. Nifong. The city of Durham was not innocent in this at all and does not deserve a break, they deserve to pay.

Barry Sheck is an opportunist, where was he when the heat was on and the guys were looking at 30years? The guys should be careful not to get too close. He didn't care about them when it was looking grim.Maybe the g88 will implode on each other as the weaker links start trying to get out from under.I'm looking forward to someone saying something outrageous so they can be sued too. They've been told they are on their own after the settlement date. That would be interesting.

The 3.39 wants to know if having no case will stop a Durham jury. I think we've pretty much determined that the trial, if any, won't be held in Durham, so there won't be any "Durham jury." And that brings a frown to the faces of the guilty Durham officials who are holding this piece of fecal matter in their hands. The point about Durham being in the Central NC District is correct, so we can have a trial in either Greensboro or Winston-Salem--either place would be great in my opinion. I believe a trial would result in discovery that would feed many future legal suits against individuals. Ooooooh, I like this!

Debrah 2:25 said... ...While thinking a bit about the Group Profiles and the last one KC is devising for tomorrow....(contemplating the strange)........there have been so many hilarious ones. Some so out in the ozone as to boggle the minds of those who give a passing nod to decorum and sanity....However, the one that is still on the top for me is the miriam cooke profile....Many elements about her and her husband are puzzling. They aren't as physically weird as some of the younger members of the Gang of 88, but much about them is so infantile and bizarre....To a point where one wonders if they have any sense of adult behavior editing?...In their hilarious mini-home-videos, cooke's husband gives all you men a lesson in how to get along with your wife.....or the woman in your life....If you want to be a henpecked wuss, that is....Remember when she scolds him like a little boy for interrupting her? And he just says softly.."Go ahead."::This morning I think I saw the older version of Miriam's husband, bless his heart.

Smoke/fire; tip/iceberg - lots of cliche'd words to use that aptly describe what'll happen when only one or two more voices come forward, offering further evidence of intimidation: the lid will blow off the 88's kettle like Mt. St. Helens. If the 88-1+1 attempt to intimidate others, be sure it'll be noted - or recorded. (May be evidence already: emails are forever.) Another mixed metaphor: once a house of cards starts to fall, more wind won't put it back up. Goes for the Dee Pee Dee, too.

Like TombZ above, I also work in the insurance industry; however, have no direct knowledge of the structure of Durham's coverage or the limits and retentions (deductibles or self-insured retentions) that form a major part thereof.

Nonetheless, the comments above concerning the insurance carrier's lawyers getting involved in the case are dead-on -- there is absolutely no way that the insurer will let a group of morons like the Durham city employees play fast and loose with the insurer's money. They'll probably hire the best attorneys they can find, and have them do their own investigation as to liability, insurability, and the potential downsides of a settlement.

I would also suspect that following their own "internal" investigation, the insurer's lawyers will reach an inevitable conclusion -- this case is a outright loser, and the insurer will want no part of it. In light of what I suspect the plaintiff's demands (prayers for damages) in the case will be, the insurer's best course of action may well be to tender their full policy limit, less the city's own retention (using figures above, that would be $5MM less $500k, or $4.5MM)to the city, and skedaddle out of town. They will have little choice but to hang the city and the city attoney out to dry. The alternative would be a potential bad-faith claims practice suit from either a plaintiff, or a city resident, or the city itself. By paying out the policy limit, the insurer will shut off the legal expenses spigot, fulfill their policy-based contractual obligation, and cut their own losses.

In that case, if I were the city attorney, I would seek to find some other parties to help out with the damages, like .... maybe ... Duke University. Obviously, the University is the deepest pocket around, and the settlement with the three players only limits the players' actions, not the city's ability to grind on the University for some do-re-mi.

The City is in for a long and wild ride, which will ultimately result in a major wreck. The only way the City can cut its losses is to find a partner with a large wallet.

I'd love to be a witness at the settlement negotiations on this one -- the parties' interests are so far apart, and the damages are so large that you might get to see some more real lawyering in this case.

I am sure Barry Scheck will do a great job on the case. I think he is commited to his clients. It wouldn't matter if he were representing OJ, Nifong, or the city of Durham.

I don't see him as searching for truth--but rather what's best for his client. I find it hard to believe he thought/thinks OJ was innocent, but OJ hired him and his job was to have the jury find him not guilty. He would have done the same for the Brown's if they had hired him first.

I'm glad that Scheck is coming in as a private attorney and not part of the Innocence Project. When Nifong had his hearing, he could have chosen anyone to come and speak for him. So who did he get? A former collegue (name?) that is a director for The NC Innocence Project. Can you imagine this woman sitting second chair on this pending trial? Strange bedfellows.

If a jury can give someone burned with hot coffee millions-- I can only hope the Duke victims get $100 million!

It is not true that "no one in Durham" is sorry about the behavior of the players in this drama, be they police or the Hatey-eighters.

There may not be many of us, that is true, but there are some of us who are pleased that Nifey is gone and Chalmers is leaving and with any luck, the chumps who chose to live here under this corrupt regime will pay for years. I hope to get out before taxes go through the roof to pay off the judgments...

anonymous said...If a jury can give someone burned with hot coffee millions-- I can only hope the Duke victims get $100 million!

8/26/07 6:22 PM

LIS! I've actually been thinking about that case (the McDonald's coffee case) and trying to use it to show Prof. Horwitz how something that can make sense to "industry insiders" -- the McD Case to lawyers, Duke's coddling of the 88ers to college faculty like Prof. Horwitz -- can look horrendous and inexplicable to outsiders. Anyway, just amazing coincidence that I see a mention of the McD Case here today.

drewski 5:16 said... ...Like TombZ above, I also work in the insurance industry; however, have no direct knowledge of the structure of Durham's coverage or the limits and retentions (deductibles or self-insured retentions) that form a major part thereof....Nonetheless, the comments above concerning the insurance carrier's lawyers getting involved in the case are dead-on -- there is absolutely no way that the insurer will let a group of morons like the Durham city employees play fast and loose with the insurer's money. They'll probably hire the best attorneys they can find, and have them do their own investigation as to liability, insurability, and the potential downsides of a settlement....The City is in for a long and wild ride, which will ultimately result in a major wreck. The only way the City can cut its losses is to find a partner with a large wallet. ::Good comment and good content. Thanks

I have a question for you concerning process.

In my experience working with insurance carriers, my insurance agent knew about local news stories about our organizations before I did! And, he required that we complete a strategic planning process which included risk analysis in accordance with the standards of the carrier and our accrediting body.

At what point do you drop a customer or amend the policy after they behave as badly as the City of Durham has behaved over and over and over?

The last time I checked, insurance companies are in the business of making money.

Also, can the insurance carrier go after the national organization that just accredited the Durham Police Department?::GP

Drewski 5:16 pmDuke participated in the hoax, but they likely won't agree to pay for Durrhh's part in the Hoax: they've taken care of their own end, with regard to settlements, and there's been considerable speculation about the settlements including DUMC and their employees. Doubtful that Duke will allow itself to be a bigger patsy for Durrhh Dee Pee Dee/DA than it's been. Anything Duke pays on Durrhh's behalf would constitute extortion, and I don't think Duke is in the mood.

The City of Durrhh may find itself on a "wild ride" as you've said. Some cities are self-insured, and since they've made several (apparently) sizable payouts for employee misconduct in recent years, this almost guarantees that they'll become self-insured, or they'll have to find someone like FEMA to insure them (a joke, right? since Durrhh is a disaster-area?)

Durrhh's best bet would be to unincorporate. Not likely, not totally indemnifying, but possible. Not only would it potentially help them if they should declare bankruptcy (reorganizational,) it would minimize the government mandates they are required to meet. In lots of cities - (nor sure about Durrhh or NC's cities in general)-government mandates by the state and federal governments are often mandated-but-unfunded. It's a sore point in some cities, as it make 'em a magnet for people who don't like work, but who love benefits.

Whether they'll unincorporate or not, and whether or not that'll be advantageous is somebody else's guess. I'm just posing a theory.

RRH 6:47MacD's was a case where the plaintiff's attorney used a number from total sales of coffee etc. Likely wouldn't apply in this case, especially since a jury would likely be given a sob-story about poor Durrhh, home of the downtrodden and unloved etc. -(motto: "we fix broken wings.")

On the other hand, private settlement agreements might be formulated a little differently, with personnel changes and other under-the-radar, back-room dealings. Settlements that are private...well, they aren't for the public to consume.

Perhaps part of Duke's settlement is that they cannot respond directly to comments about the 88, President Brodhead etc., and that they have to let public assertions of wrongdoing go by, without comment. Precluding, as one poster maintained, apologies.

What if some of the 88 wanted to apologize, but was prohibited from doing so (pubclicly) by the agreement? They'd just have to sit there and take it! (not that that's punishment enough for some of them...)

Creative settlement engineering might be utilized - assuming that the entity known as Durrhh remains in the form of a City.

Mac wrote: "What if some of the 88 wanted to apologize, but was prohibited from doing so (publicly) by the agreement? They'd just have to sit there and take it! (not that that's punishment enough for some of them...)"

I've thought of that often since the settlement as an excuse for why none of the G88 have apologized and it is very likely. However, subsequent to the original listening statement and the clarifying statement and prior to the AG's declaration of innocence, the G88 had ample opportunity to unequivocally apologize, i.e., not a "to the extent you were offended, I apologize" apology, but an honest-to-goodness, "I was wrong and I am deeply sorry" apology. As no member of the G88 did so apologize, it is a logical assumption that none have any remorse for their actions or, if any have any remorse, that those remorseful members were not inclined to so state publicly.

"When the initial DNA tests came out, one of the leaders of the Innocence Project stated the following: "There's an old saying that the absence of evidence is not necessarily evidence of absence." Sound to me that he believed a rape occurred, and not like a question of limited resources."

I too have seen the same quote (from Peter Neufeld, by the way, not Barry Scheck) interpreted in the same fashion, but unless there is more that Neufeld said that no paper I can find seems to have found fit to include, there's no basis for this interpretation. He does not make any statement about believing something happened, or believing something didn't happen. He simply makes the (true) observation that "absence of evidence is not evidence of absence."

Correct me if I'm wrong, but weren't the results of the initial rounds of DNA testing no usable DNA? In that situation, there are at least two reasonable scenarios:* There was never any incriminating DNA to be found;* There was once DNA that would have established sexual contact, but some factor such as the elapsed time between the sexual contact and the DNA testing kept the DNA from showing up on the test.

Now, the full results from the later testing, which was done with the Y-STR method (again, please correct me if I'm getting any of these details wrong) -- those results changed the equation. It was no longer "we didn't get the DNA of the players because we didn't get any DNA"; it was "we didn't get the DNA of the players when we used a method which has proven at least five times it can find DNA which is there." We now know that those five men had sex with Mangum; suppose we had been concerned with them instead of the lacrosse players at the time of the initial DNA testing. If we had concluded after the initial DNA results were back that those five men did not have sex with Mangum, because the initial DNA results were an absence of evidence that she had sex with them, we would have been completely wrong.

KCThat's a different kettle of fish, then; it also doesn't make the 88 -1+1 (Brodhead being an honorary member) look any better, and it makes their non-apologies look all the more petulant.

Prohibiting them from saying ANYTHING about the case would be like the punishment inflicted upon a certain mariner, the stink in this case being much like the stench of the carcass of a dead sea bird...

Even Odysseus had a creative penalty to pay, wandering inland until he ran into folks who thought an oar was a winnowing fan!

8:08I see what you're saying: if the initial DNA tests showed nothing, and the more specific tests showed DNA from the team, then the first results would have been wrong.That's what Nifey was counting on, or otherwise, he wouldn't have insisted upon a more sensitive test. Which is why, when the Meehan tests showed no match, but plenty of DNA, he said "we're f'ed."

That's what Neufield likely would have concluded, and perhaps why he made the "absence of evidence" comment.

In this case, however, at least two of the accused were provably absent from the scene of the "crime" when it allegedly occured; if CGM possessed their DNA, it would have had to been left there at another time, on another date. Even if their DNA had been found, it wouldn't have been evidence of a crime - (except for perhaps, the crime of paying for a sexual act, and even Nifey seemed to shudder at the concept of the young men engaging in unprotected sex with CGM when he made his "maybe they used a condom" comment.)

Their DNA would not have proven there was a crime, anyway, even as the absence of DNA (in the less sensitive tests) might not be as exculpatory as the later tests.

If you and your DNA are both absent, you are innocent!

So it begs the question: why are apologies (from the 88) still missing?

I think you are right about the significance of Y-STR testing discovering the DNA of five males in the samples taken from Mangum. At that point, absence of evidence (of lacrosse team DNA) became evidence of absence (of lacrosse team DNA).

[sarcasm]

Of course, ever since these results were made public, the "something happened" crowd has been urging investigators to discover the identity of these potential rapists.

And as we learned at the Bar hearings, DPD investigators Gottlieb and Himan and the D.A.'s office left no stone unturned in seeking out and interviewing these men to develop a more comprehensive narrative of that terrible night. To add their mug shots to the lineup, er, witness survey, for starters.

rrhamilton,reference your 2:02 post:I agree with your thoughts on apologizing regarding potential CIVIL PROCEEDINGS.The PD situation is different however because the cops could potentially be charged with felony criminal conduct.In light of possible criminal charges, would your advice be the same?As a side note, I follow DIW daily, but rarely post. I always find your comments insightful and well thought out.

"So it begs the question: why are apologies (from the 88) still missing?"

Absolutely no good reason I can see. I think they should have apologized long ago.

However, some people feel that Peter Neufeld, the Innocence Project, or Barry Shreck owe an apology for not making a public statement when the initial DNA results came back negative announcing that this vindicated the players. I was simply pointing out why such a statement of vindication wouldn't have been accurate and therefore should not have been made. A statement noting that the negative results of the DNA testing cast increasing doubt on the players' guilt would have been nice -- but for all I know, perhaps Neufeld did make such a statement and the media thought it made for a better story to report only what he had said about the DNA results not being an instant vindication.

One of the strong circumstantial pieces of evidence that no sexual assault (etc.) happened at the stripper party was the improbability of 42 college men of overall good character (as we know from the Coleman Report and more) entering into an obstruction-of-justice Conspiracy. And that such a hypothetical spur-of-the-moment conspiracy would hold, leakproof, for weeks and then months.

Never made any sense.

Which brings us to the curious case of the Group of 88's stance on apologizing in the year and a half since they published their Listening Statement in the Chronicle.

The core of the 88 may be consumed with hatred of their society; others may be doctrinaire Marxists of the Gramscian flavor. Still others may loathe athletic men of the wrong class and race, under all circumstances.

But, presumably, the signatories also included overall decent, moral, conscientious people who made a mistake. Without much time for reflection, they jumped onto an easy and certain opportunity to prove their race-class-gender bona fides.

The less-doctrinaire members of the Group of 88 have had plenty of time to reflect that Lubiano's Statement did not turn out to be some quickly-forgotten, cost-free declaration of generic P.C. solidarity. Most of them will have read this very blog, and gained some insight into how they played a damaging and immoral role in furthering the tawdry schemes of a grasping D.A. Those who subscribe to a moral code will have felt that "close call" shiver: had things gone a little differently, they would have contributed to sending innocent men to prison for 30 years.

Yet of the 88 signants, not one, has made a clear, unequivocal, public declaration along the lines of:

"The Listening Statement prejudged the guilt of Duke students in a felony assault. That crime never happened, thus the students were wholly innocent. I was wrong to sign, and I apologize to those I harmed by signing."

Perhaps the absence of such declarations is explained by the nature of the 88--they might all be committed Gramscians, gripped by hatred and the "something happened" mantra.

I think that's unlikely.

But then: what accounts for the 88's wall of silence? Where are the fringe members who, on reflection, want nothing more to do with the excesses of their race-class-gender consumed colleagues? Who like many students--even occasional white and male and athletic ones from Greenwich or Arlington or Bethesda?.

These musings add weight to the charges laid by "Silent Witness." S/he told of threats and pressure tactics by the dedicated among the 88 (and perhaps their enablers) to keep waverers in line, on board wth the Clarifying Statement, and away from the FODU pro-student petition.

Not knowing who the anonymous Silent Winness is, the jury is still out on the veracity of his or her charges. No rush to judge.

RR Hamilton's right, but you have to be aware that there are those who think doctors are a "medical lotto;" there are lawyers who encourage such lotto-style-lawsuits: sometimes a plaintiff will go along with the encouragement of a hustling, bustling ambulance-chaser, not aware that they're being hustled, and that the doctor did no wrong.

An apology likely wouldn't have helped the doctor John Edwards railroaded.

I'm fairly sure the city's insurance will cover, even if the torts were intentional by Nifong and other individuals. The argument goes that these acts were not intentional on the part of the insured, i.e., the city of Durham.

All very good questions. As I've said before, I simply cannot understand the reluctance to admit error here (again, assuming no legal reason preventing it).

Is it hubris?

Is it pressure or coercion from peers or supervisors?

Is it not realizing that there are folks "out there" who are aware how bad they look?

Some combination?

I do not know and we have no *clear* evidence to support any one or more of those explanations. If they are just hoping that people will forget about it, I'm afraid that's not going to happen.

Whatever defense I might mount of members of the G88 against some of the overblown charges and rhetoric around here, I cannot defend their continued silence in the face of the clear need to apologize for real harm done to their own students.

Folks who are posting about how poor Durham will play on a jury's heartstrings need to remember that a change of venue in a civil action is a no-brainer, and in a Federal action we're talking Greensboro. The Triad detests Durham, and would be happy, I suspect, to see my town rot. Except for the tax bill I'd have, I think it would be worth it to me to see the current crew publicly humbled or worse.

The settlement was clear that Duke would not cover any slander suits resulting from continued slanderous statements by Group members made after the settlement date.

Is that an inference given the silence of the '88 or are you in possession of the terms of the settlement? Or have you otherwise gained a confidential view of the terms?

I understand the inference. But if you have gained actual knowledge, I am troubled for surely the agreement precludes the 3 victims from making any statements. The other alternative is that one of those covered and indemnified by the agreement have breached confidentiality. And if one covered by the agreement has breached confidentiality provisions, then they are likely no longer covered.

Re the insurance coverage issues, the exposure of the insurer is a function of the nature of the claims made against the insured. If, for example, the city's policy excluded coverage for certain intentional torts/misconduct and the complaint alleged such intentional misconduct, the insurer could defend the case under a reservation of rights agreement (conditional adherence to policy obligations while most likely seeking declaratory relief in a separate legal action to determime whether there is coverage). Or the insurer could simply deny coverage outright. In most states, a plaintiff can request by statute a copy of the potential defendant(s)' insurance policy. I don't know if NC has such a law. It then becomes a "pleadings game". That is, trying to plead within insurance coverage. All that said, where, as here, there is a defendant with deep pockets independent of insurance assets, the pleadings game is less important. Long story short, Durham is going to pay, with or without insurance coverage.

On this issue, the terms of the settlement actually were announced--it stated that the players gave up the right to sue any Duke faculty members for remarks made before the date the settlement was signed. The profs aren't covered for any statements they made afterwards. Unsurprisingly, the Group members have been far more temperate since the statement was signed.

I think it is a bit of that, but also some of a London Blitz mentality, that "our solidarity is a virtue and a triumph over the enemy."

Is it not realizing that there are folks "out there" who are aware how bad they look?

These folks think KC is a crank, and most all of the rest of us are either racist neo-Nazis or misguided dupes of right-wing nutcases. They do not take any of DiW seriously. Even after the settlement, they believe they were simply doing good, are pure of motive and on the side of peace and harmony and goodness.

You read the troll on Friday. Poor KC could not get a good job in academia, etc. etc.

M. Simon 10:16 said... ...Gary Packwood,...Re: Evidence and Absence...You know it is possible that all he knew was from the newspaper reports and didn't follow the details like some obsessive's....At that time the fact that CGM was a veritable sperm bank was unknown. ...So his statement might have been an "on the other hand" so he could be right no matter which way it went. ::Correct and I am not going to be terribly surprised someday to learn that someone promised Nifong a witness (or evidence) which never panned out.

Perhaps Nifong was not obsessing about those lab reports as he waited for that new witness (or evidence) to come forward.

I would also like to know more about what the DA's office and the DPD were thinking about the charges filed against Collin with respect to a slam dunk of some kind for the DA.::GP

So, in effect, the terms of the settlement preclude any substantive apology.

I wonder if the settlement agreement could be modified to allow for a universal written and public acknowledgement of wrongdoing by both the '88 and the administration ... and with an affirmative agreement to take action to prevent future egregious acts.

Could the attorneys who crafted the agreement consider that modification?

Surely, it does not affect the financial risk of the '88 for their indemnification could by agreement survive. For the victims, it would only memorialize the extent to which they were abused by those who stood in loco parentis.

One wonders if all 88/89 would agree to such an acknowledgement of wrongdoing.

No, it's the reverse: because Group members cannot be sued for anything they said before 6-18, they're free to acknowledge their misconduct (if they believe they behaved improperly). The settlement removed the legal argument against an apology--i.e., "We can't apologize, because if we do, it would be used against us in a suit."

Very interesting post Amac, regarding comparing the alleged wall of silence by the LaCrosse team, and the de facto wall of silence by the G88.

The LaCrosse players could never have maintained a "wall of silence", because it would have required all 42 to act in a manner that is opposed to how they view themselves in the world --- as the upright student athletes they have shown themselves to be.

For the members of the G88 to apologize, or to admit their own error even to themselves, would require them to re-examine how they view themselves, and perhaps to alter their personal world view... they would have to acknowledge that a poor, minority woman lied and falsely accused affluent, white jocks of a heinouos act. And that the jocks had acted honorably, both at the time and in the aftermath.

That challenge to their self-image and their place in the world is too much. They are true believers, in the face of all evidence to the contrary, that they are "right".

I disagree with your conclusion. Although you may be absolutely correct, there is an alternative explanation. The language of the settlement may preclude any acknowledgement of wrongdoing, whatsoever. The agreement could, in effect, be a gag order. If so, then I posit that the agreement could be modified to allow such acknowledgement.

If the language of the agreement needs to be modified, then I suggest that it be done sooner rather than later.

For an apology is still and most certainly needed. And on bended knee, I might add.

...These folks think KC is a crank, and most all of the rest of us are either racist neo-Nazis or misguided dupes of right-wing nutcases. They do not take any of DiW seriously. Even after the settlement, they believe they were simply doing good, are pure of motive and on the side of peace and harmony and goodness. ...You read the troll on Friday. Poor KC could not get a good job in academia, etc. etc. ::These folks want readers of this blog to think that OTHERS think KC and all of us who comment here are cranks.

Their response is very well organized and planned and now they are back to commenting on The Chronicle's web site.

New readers should study their comments to get a better understanding of Wonderland.::GP

KC,I agree that as a result of the settlement and releases, the 88 would be immunized from further tort liability if they apologized now. That said, if the settlement agreement contained a standard "non-liability" provision (that is, the defending party...in this case, Duke University...said that it settled yet also denied any liability to the plaintiffs) then any statement of apology by any the 88 could be construed as a breach of the settlement agreement, even if they would have no further tort liability by virtue of the releases. The only way to know for sure would be to review the settlement agreement.

Oh MY GOSH! Now wouldn't that be a hoot! CGM "services" somebody in the DPD, or Duke, or DA office, or some such, and they decide that she poses a threat to them if she should talk... so she gets "sent" out to "dance" at the LAX party, where she can cry "RAPE" and the coverup can begin. They owe her; she owes them. And now we have a motive.

Probably didn't happen. Did it? But I STILL believe we have too look for MOTIVES, not just behaviors. And until we find motive, none of the rest of this will make sense.

Of course it is far-fetched. But one thing is for danged sure; Until we turn over ALL the rocks, we don't know where all the snakes are.

There is MORE. Somewhere there is MORE.

This conspiracy between all the hoax perpetrators is too intricately woven to be accidental.

KEEP DIGGING, bloggers and experts. Someday JUSTICE will be served. We don't need revenge. We need TRUTH. And that is exactly what the detractors and critics of this blogsite fear most. That is why they ridicule. They believe it will intimidate. But the dedicated HOAX exposing bloggers do not intimdate like the cowardly Gang of 88. They are more worried about the shredded fabric of trust revealed in this mess. And they are NOT going away, no matter how much ridicule.

At this point, no thread, no hypothesis is too slim to evaluate.

However, it is critical that, in the process, the truly innocent ( or "semi-innocent" as a previous writer called the "fringe" members of the 88 who still do not have the guts to recant) do not become victims of a search for truth.

Amac and Steven Horowitz are on the money here as usual. The saddest, most troubling, and indeed most puzzling aspect of the case for me at this point is the lack of an apology from even a single member of the 88.

If all 88 of them have convinced themselves the ad was fair and did not prejudge the players (despite the wording...about what happened to this woman) we're in bigger trouble than I thought. I don't think this is possible.

I don't think it's possible that no members of the group have reflected on signing the statement and decided that it was a mistake and it was wrong in at the very least the way it was worded. This tells me they (at least some of them) know they need to apologize.

So, there is something or things keeping them from apologizing. Regardless of what these may be, I'll call it cowardice.

Anonymous said... rrhamilton,reference your 2:02 post:I agree with your thoughts on apologizing regarding potential CIVIL PROCEEDINGS.The PD situation is different however because the cops could potentially be charged with felony criminal conduct.In light of possible criminal charges, would your advice be the same?As a side note, I follow DIW daily, but rarely post. I always find your comments insightful and well thought out.

8/26/07 8:43 PM

My word, I have a fan! That is such an honor, even if it is only one.

As for your question ... It's true that my 2:02 AM post only addressed ordinary negligence, and was a response to a comment about liability for medical professionals.

Most civil negligence cases do not carry the potential for criminal liability. For example, if you have used your car to pancake a small child, I would not advise you to say in front of the child's dad and the investigating officer, "I'm so sorry, but I had just finished my sixth scotch and was speeding so fast that I couldn't stop when the little boy chased his soccer ball into the street." Whenever you sense the potential for criminal liability, I would advise you to make as few statements as reasonably possible before consulting an attorney.

I apologize for this brief reply, but it is now very late. I hope I haven't lost my only fan already.

I meant to add to my speculation on the Group of 88's wall of silence (8/26/09 9:29pm) that the telling point about the improbability of a Lacrosse Team consipiracy was not my own. I encountered that observation some weeks ago in a comment by one of DiW's insightful reg'lars (perhaps Cedarford or RR Hamilton or Esq. in MD?).

But Verizon Online decided that I'd spent enough time browsing the InterWeb last night, so that was that.

Are punitive damages available in suing a municipality in NC? Actual damages are no doubt significant in this case and perhaps exceed the liability coverage, but without punitive damages Durham learns little.

"If you look at a race-charged cases in the last 15 years (and with this one, now three spring to mind), have many have clearly reached the right result under the evidence? O.J.?"

If I'd been on the OJ jury I'd have concluded that the police had planted evidence in at least two instances, and that therefore I couldn't trust them, so I'd have been forced to vote to acqyuit someone I thought was *almost* certainly guilty.

"David said... I'm fairly sure the city's insurance will cover, even if the torts were intentional by Nifong and other individuals. The argument goes that these acts were not intentional on the part of the insured, i.e., the city of Durham."

What if they can find evidence that it was intentional by the City Manager or even the Mayor?

I'm still guessing that Durrhh will eventually need to reorganize as something other than a city in order to avoid something worse.

Anyone remember when D.C. was run by the Feds? It had to be; it was a 3rd world country up to that point. As is Durrhh, apparently.

If I were a medium-income landowner with any substantial property in Durrhh, I'd be pretty nervous about now: if Durrhh doesn't reorganize, they may follow Mugabe's sordid path, and private property will be a thing of the past - (raise taxes enough, and it's basically the same result.)

"Durham taxpayers think their tax load is high already? They won't believe the tax increase that awaits them for their implicit culpability for the Hoax. Couldn't happen to better and more deserving wackos. I, too, 'raise my glass.'"

Here's a thought that might take some of the sting out of the tax hike that will be imposed on Durham taxpayers who had NOTHINGto do with perpetrating the Hoax, while penalizing some of the really Bad Guys:

Impose a real estate tax on Duke University!

This assumes that Duke currently does not pay real estate taxes, as a so-called non-profit. If true, Durham property owners are already subsidizing Duke, who then pays generous salaries & bennies to the Klan of 88 et al.

The idea has been bandied about in our state with respect to local colleges and universities, so why not the Big One in Durham? They certainly helped fan the flames of this outrageous Hoax!

Your questions regarding the underwriting process and the claims process are intertwined, but not necessarily related in this case. From my perspective, here's the issues re: your questions:

Underwriting - the insurers always have two "outs" in the event they have a ruanway loser as an insured - they can cancel the policy immediately (subject to certain restrictions in the policy regarding notice to the Named Insured and other statutory conditions), or they can non-renew. However, in either case, the insurer is going to end up on the short end of the stick in respect of the one case that brought the insured's "issues" to light. In the Duke case, the insurer is going to make some payment (assuming a plaintiff's verdict), since they cannot cancel ab initio absent some sort of overarching legal reason, such as a material misstatement in the application, etc.

When already faced with a large whole in the wallet, some insurers will seek to recoup some of their losses by renewing the policy, at a significantly higher premium, and with vastly expanded exclusionary language to "laser out" the types of claims that have already occurred. In the case of Durham's policy, it is quite reasonable to presume that there was a rather thin (i.e., very few potential insurers) market before the rape hoax came to light; following the knowlege of the case, I suspect that number was reduced to no more than maybe three. There would be the former incumbent carrier, seeking to make some recoupment, and maybe one or two bottom-feeders trying to hit a home run on the premium side while hoping that the city would be extra-prudent in its actions. In any event, the underwriters will either walk away altogether, or they will "underwrite the problem".

In situations such as the Duke case, you can do all the "risk management" surveying you like - the problem is one that is called a "moral hazard"; i.e., the insured (Durham) is acting as if they have no actual exposure to financial loss, both through their reliance on the insurance protection, and some (usually) misguided faith in the concept of sovereign immunity.

As for claims practice - in that area, I am less directly certain of who can do what to whom. The policy likely turns over to the insurer all rights of subrogation against any other parties in the case (i.e., allows the insurer to seek contribution from any other legally liable parties); however, it does not give the insurer carte blanche to sue anybody they wish. Your example of the credentialling authority(-ies) suggests that you believe that the credentialling process could be characterized as a direct cause of the damages to the players and their families. I wouldn't want to be the lawyer trying to make that argument - credentialling is not a warranty of capability or guarantee of some professional liability - it just certifies (I suspect) that the city has the proper documents and procedures and training in place, not that those items will actually be adhered to.

My comment about the settlement involving some Duke money is mainly predicated on the inherent "threat" to the University that would be caused by forcing the city into bankruptcy as a result of the rape hoax situation. You should bear in mind that the insurer will likely have access to any number of city documents that have not yet seen the light of day in perfecting its case, and certain documents (perhaps those involving contacts among and between the DUPD and the DPD, as well as Broadhead and the City Council/Mayor) might be those that Duke would prefer to keep buried.

Many people pay little attention to the power of public ridicule in many civil cases, and the fact that deep pockets can be accessed rather quickly if the pockets' owners (in this case, the Duke Administation and PD) might be shown to be far more responsible for the hoax than is presently known. Up until now, the City and the University's goals were roughly parallel - if they each insisted they acted reasonably (and, if they maintained a common front in that regard), they could rely on their mutual self-interest to perhaps weather the storm.

Once the University settled with the players, the mutuality was severed somewhat, and the city might be forced to throw the University into the meat grinder in order to save itself. In that case, money can forestall an awful lot of bad publicity if and when a settlement can be reached.

Sorry for the long (and long-delayed) response -- I was out of town actually working for a living and didn't have a chance to see your comments from yesterday.

"If I'd been on the OJ jury I'd have concluded that the police had planted evidence in at least two instances, and that therefore I couldn't trust them, so I'd have been forced to vote to acqyuit someone I thought was *almost* certainly guilty."

That's a tough one, Ralph! I can't for the life of me believe the greater good was served by letting a double-murderer walk away scot-free.

I was absolutely stunned by the outcome, and felt it sent a horrible message.

I see the Butcher of Brentwood's book "If I Did It" has done a landslide business with pre-orders. How wretched!

And FAR too little for the toll on the families, the community, and the faith and trust lost.

But then. Maybe no amount of money can really compensate. It is just symbolic.

Loss a leg at Duke? I'd guess they might tell you that what they lost was in some ways far more valuable than a leg. At least a prosthesis can replace a leg.

How do you get back trust, innocence, reputation, family health, community trust, Pritcher's dream career, and the time and energy of thousands of people whose lives are touched by the drama?

Nope. Not enough money anywhere to do it. But it can be a start.

Maybe the guys will actually use it to do something wonderful, like fund a foundation to defend TRUE civil rights. Or start a school of journalism which goes back to an old-fashioned respect for truth. ( Not my original thought. Borrowed from another blogger somewhere)

I would say right about now Durham insurer already has the means to not pay one red cent to them. Most insurance companies have "reasonable care" and "due diligence" clauses in their contracts. So once Durham gets hauled into court and it is disclosed in court records of their lack of due diligence and proper procedure the insurance company is going to turn to the Mayor and say, -- "Have a nice day, but don't call us."

I would not be surprised that Durham has to float a bond issue to pay for it.

"I hope the LAX 3 put all of these clowns into Chapt. 11, every single one of them."

Even those of us who voted against Mr. Nifong? It's interesting that those of us who felt the lacrosse players were unjustly accused could find no support from the administration of the school they attended. Perhaps Mr. Broadhead has not heard of due process.

You see, injured people don't sue you ... pissed-off injured people sue you.

That is such an important point. I'm in Chicago, where as you may know a storm cost us power for several days. There's a way to apply to the city for compensation for food that went bad, etc. I think some of that has to be paid by ComEd. I'm not going to do it. Why? Because I know that ComEd guys were out there cutting fallen trees to get at power lines at 3 am on Sunday morning. Because the guys who finally got to my house, despite the fact that they'd probably worked 70 hours in the last week, were courteous, helpful, and got the job done in an hour. And I would not dream of punishing that dedication for a couple of hundred bucks. Their commitment was worth thousands, as far as I'm concerned.

A number of comments here have gloated over the loss to the Durham taxpayers due to the Durham voters support of Mike Nifong. While I agree that the LAX 3 deserve a substantial settlement from Durham, even if it bankrupts the city, I question if the taxpayers deserve to pay it. To me the question is, do the voters who supported Mike Nifong correspond to the taxpayers who will have to pay the settlement or is it the case that those voters pay little or no tax and the taxpayers whose pockets the settlement will come out of did not support Nifong?

Durham-In-Wonderland continues to publicize facts the public needs to know in order to understand and react to what was done and what continues to be done in the name of justice in Durham. When someone behaves as Nifong did, there are, inevitably, enablers, people who either actively assist or who stand silently by. It is never just one person who perverts the judicial process. When (if) the injustice comes to light, the enablers should be called to account every bit as much as the person at the center of attention. The public now knows something important about Judges Stephens and Morey and ADA Paul. Morey in particular has given reason for the judiciary in North Carolina to investigate her fitesss as a judge. It is hard to believe that in the context of a criminal case, the judiciary in North Carolina would tolerate any lawyer misleading any judge in pre-trial matters. Most cases don't reach the trial stage. What happens in pre-trial proceedings, including in pre-trial conferences, affect the outcome of criminal cases. Even if they didn't, it hard - impossible - to justify the notion that lawers can EVER mislead a judge. If nothing is done about Judge Morey, that failure to act on the part of the North Carolina judiciary will indicate that same enabling that made it possible for Nifong undermine the legal system, continues to infect the legal system. The press is calling Judge Morey to account for allowing he personal feelings for Nifong to overcome her professional responsibility. What will the North Carolina judiciary do?

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review